UNITED STATES OF AMERICAFEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law JudgesWASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF VETERANS AFFAIRSVETERANS AFFAIRS MEDICAL CENTERCOATESVILLE, PENNSYLVANIA

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO

Charging Party

Case No. BN-CA-90660

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the under-signed herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or beforeFEBRUARY 14, 2000, and addressed to:

Federal Labor Relations AuthorityOffice of Case Control607 14th Street, NW., Suite 415Washington, DC 20424-0001

SAMUEL A. CHAITOVIZ

Chief Administrative Law Judge

Dated: January 11, 2000 Washington, DC

UNITED STATES OF AMERICAFEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law JudgesWASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: January 11, 2000

TO: The Federal Labor Relations Authority

FROM: SAMUEL A. CHAITOVITZChief Administrative Law Judge

SUBJECT: U.S. DEPARTMENT OF VETERANS AFFAIRSVETERANS AFFAIRS MEDICAL CENTER

COATESVILLE, PENNSYLVANIA

Respondent

and Case No. BN-

CA-90660

NATIONAL ASSOCIATION OF GOVERNMENTEMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of the Rules and Regulations, 5 C.F.R. § 2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Bench

Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits

and any briefs filed by the parties.

Enclosures

FEDERAL LABOR RELATIONS AUTHORITYOffice of Administrative Law Judges OALJ

00-13WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRSVETERANS AFFAIRS MEDICAL CENTERCOATESVILLE, PENNSYLVANIA

Respondent Case No. BN-CA-90660

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-35, SEIU, AFL-CIO

Charging Party

Stephen M. Pahides, Esq.For the Respondent

Alfred Gordon, Esq.Julie McCarthy, Esq.

For the General Counsel of the FLRA

Edward Smith, Esq.For the Charging Party

Before: SAMUEL A. CHAITOVITZ Chief Administrative Law Judge

BENCH DECISION AND ORDER

A hearing was held in this case on December 15, 1999, in Philadelphia, Pennsylvania. Pursuant to section 2423.31

(d) of the Federal Labor Relations Authority (Authority’s) Rules and Regulations, all parties jointly moved for a bench decision. I granted the motion at the close of the hearing

and issued a Bench Decision and Order. This Decision and

Order is set forth1 in the transcript of the hearing in this

case, page 188, line 7 through page 200, line 10. Pursuant to section 2423.31(d) of the Authority’s Rules and

Regulations, a copy of these pages is excerpted and attached hereto and made a part hereof, as Attachment A. Further, a copy of the proposed Notice is attached hereto and made a

part hereof, as Attachment B.

Issued, Washington, DC, January 11, 2000.

______________________________

SAMUEL A. CHAITOVITZChief Administrative Law

Judge

11/ Page 198 lines 23 through 25, are corrected to read as follows:

B: Refusing to abide by arbitrators’ decisions, including those that designate an off-site location for arbitration hearings.

ATTACHMENT A

7 BENCH DECISION

8 THE COURT: Okay. You’ ll forgive me. On the

9 record. This is a proceeding under the Federal Service

10 Labor Management Relation Statute, based on the charge

11 filed by the National Association of Government

12 Employees, SEIU, AFL-CIO, NAGE Local R3-35, which I

13 will refer to as Local R3-35, versus the United States

14 Department of Veterans Affairs, Veteran, Veteran

15 Administration, Veteran Affairs Medical Center,

16 Coatesville, Pennsylvania, called the VA Medical

17 Center. The regional director for the Boston region of

18 the FLRA issued a complaint and notice of hearing,

19 alleging that the, am I going too fast?

20 COURT REPORTER: No, Your Honor.

21 THE COURT: No? That the VA Medical Center

22 violated Section 7116(a)(1), (5) and (8) of the statute

23 by failing to comply with an arbitrator’s order, by

24 refusing to recognize Local R3-35’s designation of its

25 president Bailey as its representative, and by refusing

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1 him access and to hold arbitration hearings at a

2 location, and to hold arbitration hearings at a

3 location off the premises. Respondent filed an answer

4 denying the allegations. The parties requested that I

5 issue a bench decision. A hearing was held, and the

6 bench decision is issued, is being issued. Okay.

7

8 The National, NAGE and Local R3-35 are labor

9 organizations under 5 U.S.C. Section 7103(a)(4) and the

10 U.S. Department of Veterans Affairs, Veterans Affairs

11 Medical Center in Coatesville. The respondent is an

12 agency under 5 U.S.C. Section 7103(a)(3). NAGE is the

13 certified exclusive representative of a nationwide

14 consolidated unit of employees appropriate for

15 collective bargaining at VA. NAGE Local R3-35 is an

16 agent of NAGE for representing a unit of about nine

17 hundred non-professional employees at the respondent’s

18 medical center in Coatesville, Pennsylvania. They have

19 entered into a master agreement, Article 48, Section 3

20 of that agreement provides that arbitrations will be

21 held during regular shift hours and at the facility.

22 During the time covered by the, the occurrences

23 here, Gary A. Devansky was chief executive officer of

24 the VA Medical Center, and George R. Pearson was the

25 chief human resources management, chief of human

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1 resources management, and they were both supervisors

2 and/or managers under 5. U.S.C. Section 7103 (8), (10)

3 and (11), and were acting on behalf of the VA Medical

4 Center. Mark Bailey is president of Local R3-35 and

5 was recently reelected to another three year term. Mr.

6 Bailey worked for respondent until January, until

7 January, 1997, when he was removed for sexual

8 harassment. As part of his removal, VA Medical Center

9 restricted Mr. Bailey from accessing Respondent’s

10 premises for all purposes, including union

11 representation, except to get medical care which he was

12 entitled to as a veteran. The Merit Systems Protection

13 Board administrative judge on July 30th issued a

14 decision sustaining the VA Medical Centers removal of

15 Mr. Bailey.

16 Between January of 97, and July 30 of 99, the

17 respondent or the VA Medical Center and Local R-35, or

18 R, yeah, dash 35, had two arbitrations at the

19 Coatesville Community Center, and four impact and

20 implementation sessions at the Coatesville Community

21 Center.

22 During August of 99, another arbitration was held

23 at the Coatesville Community Center. Mr Bailey was

24 present at all arbitrations and impact and

25 implementation sessions.

EXECUTIVE COURT REPORTS, INC.(301) 565-0064

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1 The Coatesville Community Center is one to two

2 miles from the VA Medical Center campus, a four or five

3 minute auto ride. The campus of the VA Medical Center

4 is a number of buildings. Building 16, where

5 arbitrations are held, is the building where

6 arbitrations are held. Employees involved in patient

7 care are from a fifteen to a five-minute, an eighteen

8 to a five-minute walk to Building 16.

9 By letter dated April 7th, 1999, Arbitrator John

10 M. Skonier scheduled an arbitration hearing in FMCS

11 Case Number 98-11919, to take place on September 15th,

12 1999 at ten a.m. in the human resources conference room

13 at the Department of VAMC, first floor, building, first

14 floor, Building 16, 1400 Black Horse Hill Road,

15 Coatesville, Pennsylvania.

16 On September 9th, the charging party’s attorney,

17 Edward Smith, sent a facsimile letter to attorney

18 Stephen Pahides, representing the VA Medical Center,

19 which stated as follows Mr. Mark D. Bailey, Senior,

20 president, NAGE, Local R-35, will serve as my technical

21 representative. As you are aware, the Agency has

22 prohibited Mr. Bailey’s presence on facility grounds

23 for the purpose of union representation. Accordingly,

24 in accordance with past practice and to ensure that the

25 local union is represented at the hearing, I must

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P. 192

1 insist that the arbitration hearing take place at the

2 Coatesville Community Center.

3 On September 14th, 1999, Arbitrator John M.

4 Skonier, how does he pronounce his name?

5 MR. GORDON: Skonier.

6 THE COURT: Skonier, conducted a conference

7 call in the subject federal mediation arbitration,

8 during which NAGE was represented by attorney Smith.

9 The respondent was represented by attorney Stephen

10 Pahides, and its executive officer, Gary Devansky. The

11 respondent did not raise the safety of employee

12 concerns at, during this conference call. Only the

13 efficiency of the Agency and the terms of Article 48,

14 Section 3 of the contract. During the conference call,

15 Arbitrator Skonier ruled that the hearing in the case

16 is to be conducted at the Coatesville Community Center.

17 He confirmed this by a letter of the same day, saying

18 the VA Medical Center had waived the contract

19 provision. 20 Okay. I think those, as I see it, are the

21 relevant facts. Let me say that although there was

22 some dispute as to whether or not the arbitrator did,

23 in fact, rule upon during the conference call. I find

24 that he did, because I think that Mr. Smith’s memory of

25 what occurred was a little better than the, than the

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1 others. Plus, his letter was written in the past

2 tense. I have held, not I hereby held or am holding.

3 So it seems, and, and its written the same day as the

4 conference call.

5 Okay. Discussion. Actually, its Conclusions of

6 Law and recommended Order. Section 7121(a), one

7 second, (a) and (b) of the, of the statute provides

8 that the parties shall have a grievance and arbitration

9 proceeding in their collective bargaining agreement.

10 The Authority has held that the, a failure to proceed

11 with the arbitration violates the statute, Section

12 7116(a)(1) and (8). For that, see Department of Labor,

13 10 FLRA 316 (1982). This failure to proceed includes

14 disagreement with procedural rulings. Again, see the

15 Department of the Army, the 83rd U.S. Reserve Command,

16 11 FLRA 55 (1983). And it involves disputes as to the

17 location of any such arbitration. See, U.S. Department

18 of the Air Force, Griffis Air Force Base, Roane, New

19 York, 39 FLRA 1117 (1991).

20 Basically, here we had an arbitrator’s award that

21 was clear, perhaps erroneous. I don t know that. But

22 the scheme of the statute is when you pick an

23 arbitrator, you have to live with that arbitrator, and

24 then if you don t like what he did, you can appeal his

25 decision. The Agency did not appeal his decision.

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1 They might not have been able to. I agree, cause it

2 was, it was not a final decision. It was merely a, an

3 interim one. But the, the normal procedure is you

4 continue, and then in the end, you can raise it all.

5 But you have to continue. Okay.

6 I find the, the Authority has held recently that

7 in U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704,

8 but more particularly, their case number DE-CA-60349,

9 which starts at page 712, they, they discuss that

10 agency’s ability to designate a representative. And

11 basically, as the case has set forth, and we could all

12 talk about a, the, a union’s right to designate its

13 representative. The union can designate them, and

14 unless there are special circumstances, management has

15 to deal with that employee.

16 I find in this case, because of the nature of, of

17 Mr. Bailey’s conduct, there was special circumstances.

18 However, remember that I’ve already found that failure

19 to hold the hearing off the base, off the VA facility

20 is a, is a violation of (1) and (8). If I haven t made

21 that clear, I’m making it clear. The question is is

22 there also a (1) and (5) here. If this hearing were to

23 be held on the VA Medical Center, I think the VA

24 Medical Center was, was perfectly within its authority

25 to deny Mr. Bailey access to the premises, and I think

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1 these, the special security concerns and the whole

2 little discussion here by the Authority, abbreviated

3 and, and somewhat glib, I think applies.

4 However, its dealing with access. From, they

5 talk about entering, they, they, denying the person,

6 the president, precluding the president from entering

7 the penitentiary. And the, the respondent has

8 demonstrated special circumstances warranting its

9 refusal to grant the president access to the

10 institution for representational purposes. And I think

11 that if there was nothing more, respondent in this case

12 would have been privileged, was privileged in denying

13 Mr. Bailey access. However, we have here an arbitrator

14 saying no, hold the hearing off the premises. I don’t

15 see where these special circumstances privilege the,

16 the Agency from dealing with Mr. Bailey off the

17 premises. And by its refusing to go off the premises,

18 and not allowing him on the premises, which it was

19 privileged to do, it was in effect denying the union

20 the ability to name Mr. Bailey as its representative in

21 this case. Therefore, I say by refusing Mr. Bailey

22 access to the facilities, while at the same time,

23 refusing to participate in the hearing off the site,

24 the Agency was violating Section 71, 7116(a)(1) and

25 (5). But that s only in light of the arbitrator’s

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1 order. If this were to be held on the premises, I

2 submit special circumstances perhaps would, would have

3 privilege in my view, although its dictum in this

4 case, would have privileged the Agency from denying Mr.

5 Bailey access.

6 So I do find just so that I make this nice and

7 neat that the phone hook-up offer was not a sufficient

8 offer of representation. That’s, I find

9 unsatisfactory. I do find in, in, in keeping with the

10 somewhat novel language of this decision, still

11 referring to the Leavenworth case, that, that the

12 respondent did not preclude the, the, Mr. Bailey from

13 entering the penitentiary in order to prevent the union

14 from carrying out its representative activities. I say

15 you are privileged to do it. As they would say,

16 security trumps union representation. They like that

17 trump stuff. They must play bridge is all I can think

18 of.

19 However, having said that, and, and noting that

20 you had offered to meet with other union

21 representatives, the power of a union to designate its

22 own representatives is of utmost importance. It is the

23 nature of the union. It is a, a representative

24 organization and, therefore, who it designates to

25 represent it is of the highest order. So, by refusing

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1 to meet on the base, which you were privileged to do,

2 but by at the same time refusing to comply with an

3 arbitrator’s order, I find that you, you violated your

4 duty to bargain in good faith, because you, in effect

5 denied the union the right to designate Mr. Bailey.

6 In the same way, or along the same line, I find

7 that there was also an independent violation of

8 7116(a)(1) because this kind of a denial of the union

9 its right to designate Mr. Bailey as its

10 representative, is independent interference with

11 employee’s rights to organize and be represented.

12 With respect to the unions request for expenses,

13 I’m sorry Mr. Smith is not here, but they required

14 to file disclosure, too. He was very upset when the

15 respondent wanted to put in something that perhaps was

16 not in the disclosure. They didn’t file any

17 disclosure. They didn’t indicate they were asking for

18 expenses. The parties had no opportunity to prepare

19 for such a request, nor did I.

20 Further, I find that the Equal Access to Justice

21 clearly doesn’t apply, because thats to allow

22 respondents who feel they have been improperly pursued

23 by the general counsel to seek some small recompense.

24 But the Back Pay Act doesn’t apply either. This wasn’t

25 a prohibited personnel practice. There was no back pay

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1 involved. So I find that that doesn’t apply. As far

2 as the remedy, as, just as a, a good or novel,

3 everybodys saying we need novel remedies to make our

4 act more effective. A: I’m not sure you can order an

5 agency to pay funds as such. I think there may be some

6 problems with that as a remedy, as a punishment. But

7 also, I just don t think its appropriate here. As I

8 say, this is not, this is a closed case. I think that,

9 that the Agency was privileged in denying Mr. Bailey

10 access to its premises. And I just don t think

11 expenses are appropriate in this case.

12 For an Order, I ORDER the following: Pursuant to

13 Section 2423.29 of the Federal Labor Relations

14 Authorities Rules and Regulations and Sections 7118 of

15 the Federal Service Labor Management Relation statute,

16 the United, the Veterans Administration Medical Center

17 in Coatesville, Pennsylvania shall cease and desist

18 from refusing to participate in the hearing in the

19 arbitration proceeding in FMCS, case number 98-11919 at

20 the Coatesville Community Center, or any other location

21 as ordered by Arbitrator John M. Skonier. We’ll,

22 thats A.

23 B: refusing to abide by the arbitrator’s

24 decisions, including those that designate an off-site

25 location for arbitration hearings.

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P. 199

1 C: refusing to recognizing NAGE Local R3-35

2 president Mark D. Bailey, Senior as the union’s

3 designated representative by refusing to abide by an

4 arbitrator’s decision concerning location of hearings.

5 And in any like or related manner, interfering with,

6 restraining or coercing bargaining unit employees in

7 the exercise of their rights assured by the statute.

8 You’ll take the, take the affirmative, the

9 following affirmative action in order to effectuate the

10 purposes and policies of the statute: participate in

11 the arbitration proceeding in FMCS, case number 98-

12 11919 at the Coatesville Community Center, or any other

13 location as ordered by Arbitrator John M. Skonier and

14 abide by arbitrator’s decisions, including those that

15 designate an off-site location for arbitration

16 hearings.

17 Post at the, post a notice to all employ, post at

18 the VA Medical Center, Coatesville, Pennsylvania,

19 copies of the attached notice to all employees on forms

20 furnished by the Federal Labor Relations Authority.

21 Upon receipt of the forms, the notice shall be signed

22 by the chief executive officer of the VA Medical

23 Center, Coatesville, and shall be posted and maintained

24 for sixty consecutive days in conspicuous places,

25 including all places where notices to employees are

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1 customarily posted. Reasonable steps shall be taken to

2 ensure that the notice and order are not altered,

3 defaced or covered by any other material. What was

4 that? That was B.

5 C, D, I’m sorry. Pursuant to Section 242330 of

6 the Authority’s rules and regulations, notify the

7 regional director, Federal Labor Relations Authority,

8 Boston region, in writing, within thirty days from the

9 date of this order as to what steps have been taken to

10 comply.

11 That’s my decision. Now, let me tell you the

12 procedures. When I get the transcript, I ll read it

13 over, certify it and issue a, a notice which will go

14 along, which will basically track the order. At that

15 point, when I certify it, the parties can take

16 exceptions if they desire. Are there any questions?

17 MR. GORDON: No, Your Honor.

18 THE COURT: Then the hearing is closed.

19 (Whereupon, the hearing was concluded at 3:27

20 p.m.)

21

EXECUTIVE COURT REPORTERS, INC.(301) 565-0064

ATTACHMENT B

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Authority has found that the U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice. WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT refuse to participate in the hearing in the arbitration proceeding in FMCS Case Number 98-11919 at the Coatesville Community Center, or at any other location as ordered by Arbitrator John M. Skonier.

WE WILL NOT refuse to abide by arbitrators’ decisions, including those that designate an off-site location for arbitration hearings.

WE Will NOT refuse to recognize NAGE, Local R3-35 President, Mark Bailey Sr., as the Union’s representative, by refusing to abide by an arbitrator’s decision concerning the location of hearings.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL participate in the arbitration proceeding in FMCS Case Number 98-11919 at the Coatesville Community Center, or at any other location as ordered by Arbitrator John M. Skonier, and will abide by arbitrators’ decisions, including those that designate an off-site location for arbitration hearings.

_______________________

(Agency)

Dated:__________________By:___________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110, and whose telephone number is: (617)424-5730.

CERTIFICATE OF SERVICE

I hereby certify that copies of this DECISION issuedby SAMUEL A. CHAITOVITZ, Chief Administrative Law Judge, in Case No. BN-CA-90660, were sent to the following parties:

CERTIFIED MAIL AND RETURN RECEIPT CERTIFIED NOS:

Alfred Gordon, Esquire P168-060-131Federal Labor Relations Authority99 Summer Street, Suite 1500Boston, MA 02110

Julie McCarthy, Esquire P168-060-132Federal Labor Relations Authority99 Summer Street, Suite 1500Boston, MA 02110

Stephen Pahides, Esquire P168-060-133VAMC, Regional Counsel5000 Wissahickon AvenueP.O. Box 13106Philadelphia, PA 19101

Edward Smith, Esquire P168-060-134NAGE, Local R3-35, SEIU317 S. Patrick StreetAlexandria, VA 22314

_____________________________________

CATHERINE L. TURNER, LEGAL TECHNICIAN

DATED: JANUARY 11, 2000 WASHINGTON, DC